body corporate and as such capable of suing | existing wardship is not an obstacle, as is or defending in respect of such lands. Laws shown by repeated decisions of this court, *of New Mex. 1851-52, pp. 176, 418. If the plain- which Lone Wolf v. Hitchcock, 187 U. S. 553, tiff was not a legal entity and juristic per- 23 Sup. Ct. 216, 47 L. Ed. 299, is an illustrason before, it became such under that law; tion. and it retained that status after Congress In view of the very broad allegations of the included it in the territory of Arizona, for bill, the accuracy of which has not been chalthe act by which this was done extended to lenged as yet, we have assumed in what has that territory all legislative enactments of been said that the plaintiff's claim was valid the territory of New Mexico. Act Feb. 24, in its entirety under the Spanish and Mexi1863, c. 56, 12 Stat. 664. The fact that Ari- can laws, and that it encounters no obstacle zona has since become a state does not af- in the concluding provision of the sixth artifect the plaintiff's corporate status or its cle of the Gadsden Treaty, but no decision on power to sue. See Kansas Pacific R. R. Co. either point is intended. Both involve quesv. Atchison, Topeka & Santa Fé R. R. Co., 112 tions not covered by the briefs or the disU. S. 414, 5 Sup. Ct. 208, 28 L. Ed. 794. cussion at the bar and are left open to inThe case of Cherokee Nation v. Georgia, | vestigation and decision in the further prog5 Pet. 1, 8 L. Ed. 25, on which the defendants place some reliance, is not in point. *The question there was not whether the Cherokee Tribe had the requisite capacity to sue in a court of general jurisdiction, but whether it was a "foreign state" in the sense of the judiciary article of the Constitution, and there fore entitled to maintain an original suit in this court against the state of Georgia. The court held that the tribe, although uniformly treated as a distinct political society capable of engaging in treaty stipulations, was not a "foreign state" in the sense intended, and so could not maintain such a suit. This is all that was decided.

ress of the cause.

[3] Of course, the Court of Appeals ought not to have directed the entry of a final decree awarding a permanent injunction against the defendants. They were entitled to an opportunity to answer to the merits just as if their motion to dismiss had been overruled in the court of first instance. By the direction given they were denied such an opportunity, and this was a plain and prejudicial error.

Our conclusion is that the decrees of both courts below should be reversed and the cause remanded to the court of first instance, with directions to overrule the motion to dismiss, to afford the defendants an opportunity to answer the bill, to grant an order restraining them from in any wise offering, listing or disposing of any of the lands in question pending the final decree, and to take such further proceedings as may be ap

opinion.

Decree reversed.

(249 U. S. 174)

CITY OF RICHMOND v. BIRD et al.

[2] The defendants assert with much earnestness that the Indians of this pueblo are wards of the United States-recognized as such by the legislative and executive departments-and that in consequence the disposal of their lands is not within their own control,propriate and not inconsistent with this but subject to such regulations as Congress may prescribe for their benefit and protection. Assuming, without so deciding, that this is all true, we think it has no real bearing on the point we are considering. Certainly it would not justify the defendants in treating the lands of these Indians-to which, according to the bill, they have a complete and perfect title as public lands of the United States and disposing of the same under the public land laws. That would not be an exercise of guardianship, but an act of confiscation. Besides, the Indians are not here seeking to establish any power or capacity in themselves to dispose of the lands, but only to prevent a threatened disposal by administrative officers in disregard of their A city's unsecured claim for taxes, given no full ownership. Of their capacity to main-of a valid lien, protected by Bankruptcy Act, superior right by local laws, is not placed ahead tain such a suit we entertain no doubt. The § 67d, by section 64a (Comp. St. § 9648), directing that taxes be paid in advance of dividends to creditors; "dividend," as commonly used throughout the act, meaning partial payment to general creditor.

1 See Chouteau v. Molony, 16 How. 203, 237, 14 L Ed. 905; United States v. Ritchie, 17 How. 525, 540, 15

L. Ed. 236; United States v. Pico, 5 Wall. 536, 540, 18 L. Ed. 695; United States v. Sandoval, 231 U. S. 28, 34 Sup. Ct. 1, 58 L. Ed. 107; Cherokee Nation v. Hitchcock, 187 U. S. 294, 307, 23 Sup. Ct. 115, 47 L. Ed. 183; Lone Wolf v. Hitchcock, 187 U. S. 553, 568, 23 Sup. Ct. 216, 47 L. Ed. 299; Tiger v. Western Investment Co., 221 U. S. 286, 310, et seq., 31 Sup. Ct. 578, 55 L. Ed. 738.

In re AINSLIE CARRIAGE CO. (Argued Jan. 28 and 29, 1919. Decided March 3, 1919.)

BANKRUPTCY

No. 195. 346-CLAIMS

LIENS TAXES "DIVIDEND."

PRIORITIES

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Dividend.]

Mr. Justice Day and Mr. Justice Clarke dissenting.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

On Writ of Certiorari to the United States Circuit Court of Appeals for the Fourth Circuit.

was necessary in order to impart notice, shall not be affected by this act." 30 Stat. 564. And (2) that under Virginia law such

the city had for unpaid taxes but neglected to perfect by exercising the summary power granted by its charter to distrain therefor after September 1st in year for which levied.

In the matter of the Ainslie Carriage Com-a lien is superior to the inchoate one which pany, bankrupt. Judgment of the District Court, giving the city of Richmond a preference for the payment of taxes over the claims of Elizabeth W. Bird and others for a landlord's lien, was reversed by the Circuit Court of Appeals (240 Fed. 545, 153 C. C. A. 349), and the City brings certiorari.

Affirmed.

See, also, 247 Fed. 1002, 159 C. C. A. 661.

Mr. George Wayne Anderson, of Richmond, Va., for petitioner.

It is not denied that respondents obtained a present valid lien upon the bankrupt's goods and chattels distrained November 1, 1909; nor is it now claimed this was annulled by adjudication of bankruptcy. That the city of Richmond had no lien for past-due taxes upon these goods and chattels when the chancery court receiver took possession, we think

Mr. James E. Cannon, of Richmond, Va., must be regarded as settled by Jackson for respondents.

Coal Co. v. Phillips Line, 114 Va. 40, 49, 50, 75 S. E. 681, 684 (1912), and this notwith

Mr. Justice MCREYNOLDS delivered the standing differences between its charter, and opinion of the Court. that of Petersburg. The Supreme Court of Virginia there said:

November 4, 1909, the chancery court at Richmond upon petition filed the preceding day appointed a receiver for the Ainslie Carriage Company; February 3, 1910, the company was adjudged bankrupt in involuntary proceedings instituted November 6, 1909. At time of receiver's appointment taxes assessed upon the bankrupt's personal property for the years 1907, 1908 and 1909 were due the city of Richmond for which it had not distrained, although having authority so to do. Respondents, landlords of the bankrupt, under express statutory authority, levied a distress warrant November 1, 1909, upon its goods and chattels on account of rent due for the period since April 1, 1908. The question is whether their claim is entitled to priority of payment over the taxes. The Circuit Court of Appeals answered in the affirmative. Bird v. City of Richmond, 240 Fed. 545, 153 C. C. A. 349.

"With respect to that part of the decree appealed from, which directed the payment of taxes due from the Phillips Line, and its predecessor in title, to the state of Virginia and the' city of Petersburg, out of the fund under the control of the court, and giving the taxes priority of payment over the creditors of the receivers, the court erred, except as to the taxes for the year 1910. The property upon which these taxes were assessed was wholly personal, and no effort appears to have been made, certainly as to the years prior to 1910, either by the auditor of the state or by the city of Peters

burg, to collect the taxes until the property was placed in the hands of the receivers in this cause and an account of debts against the Phillips Line ordered. The state had a right, under sections 604-623 of the Code, for one year from the date on which the taxes in her favor were assessed, to levy upon the property assessed with the taxes, which right was not exercised; and it appears that the city of Petersburg had a right of distress against the

The city, while not disputing that levy property assessed with taxes in its favor, which

of the distress warrant gave respondents a valid lien, claims priority under section 64a, Bankruptcy Act "The court shall order the trustee to pay all taxes legally due and owing by the bankrupt to the United States, state, county, district, or municipality in advance of the payment of dividends to creditors, and upon filing the receipts of the proper public officers for such payment he shall be credited with the amount thereof, and in case any question arises as to the amount or legality of any such tax the same shall be heard and determined by the court." Act July 1, 1898, c. 541, 30 Stat. 563 (Comp. St. § 9648).

the city might have exercised before the taxes
were returned delinquent, or the property upon
which they were assessed had passed into the
hands of subsequent purchasers, and thereby
secured a lien therefor, but these rights were
Under these circumstances, nei-
never exercised.
ther the state nor the city had a lien upon the
the hands of the receivers for the taxes due
property of the Phillips Line when it went into
them, respectively, and, therefore, the position of
the state and city was no better than that of
the general *creditors of the company, and they
were not entitled to share in the proceeds of
sale of the company's property, except as to
the amount of taxes due them [the state and the
city], respectively, for the year 1910, assessed
against and due from the receivers."

Respondents maintain: (1) That their lien, perfected through distraint, was fully pro- Respondents therefore must prevail unless tected by section 67d (as it read prior to priority over their lien is given by section 1910), Bankruptcy Act-"Liens given or ac- 64a to claim for taxes which, under state law, cepted in good faith and not in contempla- occupied no better position than one held tion of or in fraud upon this act, and for a by a general creditor. Section 67d, Bankpresent consideration, which have been re-ruptcy Act, quoted supra, declares that liens corded according to law, if record thereof given or accepted in good faith and not in

*177

contemplation of or in fraud upon this act, | road Company, successor of the New York shall not be affected by it. Other provisions Central & Hudson River Railroad Company. must, of course, be construed in view of this Award was affirmed by Appellate Division, positive one. Section 64a directs that taxes and leave to appeal to the Court of Appeals be paid in advance of dividends to credi- denied (172 App. Div. 918, 156 N. Y. Supp. tors; and "dividend" as commonly used 1141), and the company brings error. Rethroughout the act means partial payment versed and remanded. to general creditors. In section 65b (Comp. St. § 9649), for example, the word occurs in contrast to payment of debts which have priority. And as the local laws gave no superior right to the city's unsecured claim for taxes we are unable to conclude that Congress intended by section 64a to place it ahead of valid lienholders.

New Jersey v. Anderson, 203 U. S. 483, 27

Sup. Ct. 137, 51 L. Ed. 284, is not decisive
of any point here contested; it only adjudg-
ed that New Jersey's claim was for a tax
within the meaning of section 64a and en-
titled to be treated accordingly. See State
of New Jersey v. Lovell, 179 Fed. 321, 102
O. C. A. 505, 31 L. R. A. (N. S.) 988.
The judgment below must be
Affirmed.

Mr. Justice DAY and Mr. Justice CLARKE dissent.

2. COMMERCE 27(5)-EMPLOYERS' LIABILI TY EMPLOYMENT IN "INTERSTATE COMMERCE."

Railroad servant, killed by passing train while shoveling snow on railroad company's premises, between platform and tracks used for interstate and intrastate cars and commerce, was then employed in "interstate commerce." [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.]

Mr. Justice Clarke, dissenting.

In Error to the Supreme Court, Appellate Division, Third Judicial Department of the state of New York.

Mr. Robert E. Whalen, of Albany, N. Y., for plaintiff in error.

Messrs. Merton E. Lewis, of Rochester, N. Y., and E. Clarence Aiken, of Albany, N. Y.,

for defendants in error.

Mr. Justice McREYNOLDS delivered the opinion of the Court.

Lewis M. Porter, a section man, was struck and instantly killed by plaintiff in error's engine attached to a passenger train and moving along the main track. The Appellate Division affirmed an award in behalf of his widow and children under the New York Workmen's Compensation Law (Consol. Laws, c. 67). Porter v. New York Cent. & H. R. R. Co., 172 App. Div. 918, 156 N. Y. Supp. 1141.

[1] If the deceased was employed in interstate commerce when the accident occurred, consequent rights and liabilities arose under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [Comp. St. §§ 8657-8665]), and the state statute did not apply. New York Central R. R. Co. v. Winfield, 244 U. S. 147, 37 Sup. Ct. 546, 61 L. Ed. 1045, L. R. A. 1918C, 439, Ann. Cas. 1917D, 1139; Erie R. R. Co. v.. Winfield, 244 U. S. 170, 37 Sup. Ct. 556, 61 L. Ed. 1057, Ann. Cas. 1918B, 662.

[2] The evidence showed and the State Workmen's Compensation Commission found:

"Lewis M. Porter resided at Camden, N. Y., and upon the date of the accident, December 17, 1914, was in the employ of the New York Central Railroad Company as a laborer. On said date, while engaged in shoveling snow upon the premises of the New York Central Railroad Company between the west-bound track and a platform near the intersection of said tracks and Mexico street in the village of Camden, he was struck by the engine of a passenger train known as train No. 49, which was proceeding northerly on the west-bound track, receiving injuries from which he died immediately. tracks of the New York Central Railroad Company at the point where the deceased was working, were used for the purpose of transporting both interstate and intrastate cars and both interstate and intrastate commerce."

The

Considered in connection with our opinions in Pederson v. Del., Lack. & West. R. R., 229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153, Southern Railway Co. v. Puckett, 244 U. S. 571, 37 Sup. Ct. 703, 61 Proceeding by Anna C. Porter, for herself L. Ed. 1321, Ann. Cas. 1918B, 69, and cases and her minor children, for compensation un- there cited, we think the circumstances here der the New York Workmen's Compensation presented make it quite clear that when Act, opposed by the New York Central Rail- killed Porter was employed in interstate

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

189

In the progress of transportation the car (Submitted Jan. 16, 1919. Decided March 3, arrived at Dayton, Ohio, on the morning of

1919.)

No. 138.

1 CARRIERS 228(1)—INTERSTATE SHIPMENT -BURDEN OF PROOF-LOSS ON CONNECTING LINE.

Under the Carmack Amendment to the In

terstate Commerce Act (Comp. St. §§ 8604a, 8604aa), in an action against initial carrier for loss of poultry occurring on connecting line, the burden of proof is not on the shipper to show that loss was "caused by" the connecting line, and not the military authorities in a flood district under martial law, which confiscated the poultry for benefit of sufferers.

2. APPEAL AND ERROR 882(8)—RECEPTION OF EVIDENCE-ESTOPPEL TO OBJECT-DEPO

SITIONS.

Where carrier, sued for loss of shipment, introduced in evidence deposition taken by plaintiff, it cannot be heard to say that deposition contained statements of its agents, which were inadmissible because of lack of evidence showing relation of agents to carrier.

March 25th, and was there delayed by a flood caused by rains so unprecedented that on that date martial law was declared applicable to Dayton and the territory in which the car was held. The flood waters overflowed the rails on which the car stood, but did not reach the body of the car so as to affect the health of the poultry and access to and from it was readily maintained by the caretaker.

On March 31st the state military authorities took possession of the car and distributed its contents to persons rendered destitute by the flood.

Suit against the carrier, based on the bill of lading, commenced in a state court, was removed to the appropriate District Court of the United States.

On the trial of the case the shipper introduced evidence tending to prove that the confiscation was due to the solicitation of representatives of the carrier and to their false representation that the fowls were dying from lack of food and attention and had Supreme Court will accept as conclusive a caretaker, but the railroad company denied been or were about to be abandoned by the

3. APPEAL AND ERROR VERDICT.

1094(2)—REVIEW

verdict approved by two courts.

4. CARRIERS 219(5)—INTERSTATE SHIPMENT -SEIZURE BY MILITARY AUTHORITIES-LIA

BILITY.

Seizure of shipment of poultry on connecting line, by military authorities in flood district under martial law, to relieve sufferers, if solely by reason of invitation of connecting line, when it could have delivered shipment by exercise of ordinary care, renders the initial carrier liable.

In Error to the United States Circuit Court of Appeals for the Seventh Circuit.

Action by the Collins Produce Company against the Chicago & Eastern Illinois Railroad Company. To review a judgment of the Circuit Court of Appeals (235 Fed. 857, 149 C. C. A. 169) affirming a judgment for plaintiff, defendant brings error. Affirmed.

Messrs. Homer T. Dick, of Chicago, Ill., and Lindorf O. Whitnel, of East St. Louis, Ill., for plaintiff in error.

Messrs. Charles Wham and Fred L. Wham, both of Centralia, Ill., for defendant in er

ror.

this and introduced evidence tending to prove that there was no such solicitation or false representation and that the confiscation was situation and by the necessity for supplying rendered necessary by the exigencies of the food to the people rendered homeless by the flood.

The trial court charged the jury:

That it was the duty of the carrier to transport the property to destination, if it could do so; that it could not overcome the flood or the action of the military authorities and that if the latter acted of their own volition the shipper could not recover; but that if the military authorities seized the consignment solely upon and by reason of the invitation of the railroad company, and if, but for this confiscation, the property or any part of it, in the exercise of ordinary care, could have been transported to its destination, then the defendant, the carrier, would be liable for the value of such part of it as the jury might find from the evidence could have reached its destination, to be determined by the invoice price at the point of shipment, less any deterioration caused by the delay solely incident to the flood.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

*192